United States Border Patrol checkpoints lace the interior of Texas
and other southern border states, typically lying twenty-five to
seventy-five miles from the border with Mexico. (1) Federal law permits
immigration officers "to board and search for aliens ... any
railway car, aircraft, conveyance, or vehicle" located "within
a reasonable distance from any external boundary of the United
States." (2) At the checkpoints, agents may, pursuant to the
Supreme Court's holding in United States v. Martinez-Fuerte,
"brief[ly] det[ain] ... travelers" and "require[] of the
vehicle's occupants ... a response to a brief question or two and
possibly the production of a document evidencing a right to be in the
United States." (3) For those within the "border
zone"--the area of land between federal interior immigration
checkpoints and the international border--travel to the rest of the
country functionally requires an encounter with federal immigration
enforcement. (4) As a result, unauthorized immigrants living within the
border zone avoid such travel and find their world effectively
circumscribed by the checkpoints. (5) State laws and regulations with
spatially disparate effects, such as recently enacted Texas legislation
that compels widespread closure of abortion clinics, therefore have
particular significance for undocumented immigrants in the border zone.
(6)

In 2013, the State of Texas enacted Texas House Bill 2 (H.B. 2),
which regulates abortion providers and could result in the closure of
all abortion clinics south and west of internal immigration checkpoints
in the state. (7) H.B. 2 requires that all abortion clinics in Texas
meet the facility requirements for ambulatory surgical centers and that
all doctors performing abortions have hospital admitting privileges
within thirty miles of their clinics. (8) The legislation has led to the
closure of many clinics in the state (9) and has engendered both
controversy and litigation. An as-applied challenge, focusing on the
extent to which courts ought to probe legislatures' health-premised
justifications for narrowing abortion availability, has reached the
Supreme Court. (10) The abortion providers in Texas's border area
are among those unable to meet H.B. 2's requirements: both the
Whole Woman's Health Clinic in McAllen, a city in Texas's
southern Rio Grande Valley, and the two clinics in El Paso, the
metropolitan area at Texas's westernmost tip, have not been able to
do so. (11)

Because of H.B. 2, undocumented immigrants living in southern and
western Texas face the potential closures of the only three abortion
clinics in the state that do not require travel through internal
immigration checkpoints from the border area. Roughly 822,500 women live
in the Rio Grande Valley and the nearby city of Laredo, within the
border zone in the southern part of the state. (12) Roughly fifty
thousand have neither citizenship nor legal immigration status and are
of reproductive age. (13) Were the McAllen clinic to close, the border
checkpoints would physically stand between these women and obtaining an
abortion under medical care. The undocumented women in the area would
not be able to obtain an abortion under medical care unless they were to
risk deportation by traveling through the checkpoints, risk death by
attempting to circumvent them, or successfully obtain lawful presence in
the country before the point at which abortion becomes illegal. (14) In
west Texas, roughly four hundred twenty-five thousand women live in the
largest metropolitan area, in El Paso County. (15) Closure of the El
Paso clinics would mean that the approximately twenty-four thousand
undocumented women of reproductive age living in that area would also
need to cross a border checkpoint in order to obtain an abortion in
Texas. (16) However, these individuals can currently reach a clinic
located south of border checkpoints in New Mexico. (17)

Whether H.B. 2 and the checkpoints create a constitutionally
impermissible barrier to abortion access remains significant for this
group of women three years after the statutory provisions became law.
The Fifth Circuit has issued an injunction partially limiting the
law's effect by preserving access to the McAllen clinic for
undocumented immigrants living in some but not all of the counties
within the border zone in South Texas. (18) However, the injunction
terminates if a clinic opens closer to the Rio Grande Valley yet beyond
the checkpoints and its enjoinment of the admitting privileges
requirement extends only to a single, part-time doctor named in the
opinion. (19) Because the injunction is underinclusive with respect to
undocumented women in the border zone and may terminate, and because the
limited relief may not prevent the closure of the McAllen clinic, the
separate question of the checkpoints' import to H.B. 2's
application to the clinics persists. If access to abortion rights must
be evaluated within the confines of one's state, (20) then the El
Paso clinic poses constitutional concerns as well. From a theoretical
perspective, the broader question of how to think about potential
barriers to vindication of substantive due process rights posed by the
conjunction of federal immigration enforcement and state regulatory law
remains open as well.

This Note identifies and explicates an overlooked constitutional
problem with H.B. 2, as applied to the border-zone clinics: in light of
the backdrop of federal immigration enforcement, the Texas law violates
the reproductive rights of more than eighty thousand women. In
evaluating the potential rights burden imposed on undocumented women in
the border zone by H.B. 2, the Note applies two analytical frameworks of
constitutional law: the undue burden analysis specific to substantive
due process abortion jurisprudence and the unconstitutional-conditions
doctrine. The Note determines that H.B. 2 violates the reproductive
rights of undocumented immigrants in the Texas border area under either
analysis. Part I characterizes the spatially selective immigration
enforcement regime that forms the backdrop to state legislation and
notes the omission of the spatially disparate effect of H.B. 2 from
litigation challenging the law. Under the undue burden framework, Part
II argues, H.B. 2 has the effect of deterring undocumented women from
seeking an abortion. Under the unconstitutional-conditions framework, as
Part III explicates, the law violates undocumented women's abortion
rights by conditioning abortion access on exposure to immigration
enforcement. The causal set that gives rise to the rights burden is
unusual: it is comprised of federal immigration enforcement, state
statutory provisions regulating abortion clinics, and unauthorized
immigrants' (lack of) immigration status. Part IV addresses an
important set of counterarguments: it argues that on either framework
analysis, and notwithstanding the other elements of the causal set, the
state legislation is causally responsible for the violation. This
conclusion is both doctrinally accurate and most consonant with
constitutional commitments to individual rights in the border zone.

This Note is the first work to analyze the implications of the
confluence of state laws with spatially disparate effects and internal
checkpoints for the fundamental rights of undocumented immigrants. This
confluence highlights the way in which the area along the U.S.-Mexico
border inverts federalism protections for a vulnerable minority group
that can exercise neither exit nor voice. It also provides one example
of the significance of the undertheorized relationship between
substantive due process rights and political and physical space.

I. THE BORDER ZONE AND H.B. 2

A. Border Checkpoints: Spatially Selective Immigration Enforcement

The interior Border Patrol checkpoints create a system of spatially
selective immigration enforcement within the United States. (21)
Individuals driving north from the cities, towns, and ranches along the
international border must, eventually, stop at a roadblock set up along
the highway. (22) Implementing regulations interpret the
"reasonable distance" contemplated in the federal statute
authorizing immigration searches as "within too air miles from any
external boundary of the United States or any shorter distance"
determined by certain Department of Homeland Security officials. (23) At
a checkpoint within this "reasonable distance," a Border
Patrol agent asks all occupants of the vehicle if they are United States
citizens. (24) The agent may then refer individuals to secondary
screening for further questioning as to their legal status in the United
States. (25) If the Border Patrol agent determines that there is
probable cause, individuals may be searched, detained, and, eventually,
either charged with a crime or entered into immigration removal
proceedings. (26) The Supreme Court has upheld warrantless vehicle stops
without particularized suspicion at Border Patrol checkpoints against a
Fourth Amendment challenge. (27)

Consequently, for those within the border zone, traveling into the
interior of the United States requires reckoning with this legal and
physical architecture of empire. (28) In Texas, the border zone
encompasses the cities of El Paso and Laredo, the area of southern Texas
called the Rio Grande Valley (including the cities of McAllen and
Brownsville), and the smaller towns and ranches that dot the border. It
is home to more than 2.4 million people in the state. (29) The Border
Patrol maintains a web of "permanent" checkpoints--with
physical buildings, electronic sensors, and remote-surveillance
capabilities--and "tactical" checkpoints on secondary roads,
which lack permanent physical structures. (30) Other than by passing
through the highway checkpoints or Border Patrol screening at one of the
airports in the region, there is no practical way out of the border zone
and into northern Texas. (31) In 2012, more than 120 people died trying
to evade the Rio Grande Valley's eastern checkpoint by walking
through semiarid scrubland. (32)

[FIGURE 1 OMITTED]

As others have noted, (33) the Supreme Court's treatment of
Border Patrol checkpoints and standards for searches within the space
between the checkpoints and the international border make the area what
Gerald Neuman has called an "anomalous zone": a space "in
which certain legal rules, otherwise regarded as embodying fundamental
policies of the larger legal system, are locally suspended." (34)
In the border zone, these suspended rules include the typical Fourth
Amendment limitations on searches and seizures. (35) In areas in Texas
and other states on the southern border, Border Patrol agents require
only a reasonable suspicion that an individual is a noncitizen--not
probable cause--to effectuate a stop south of the checkpoints. (36) And
exiting this area and reaching the rest of the state (and country)
requires a warrantless seizure, without particularized suspicion, at the
checkpoint. (37) The Supreme Court has justified these deviations from
ordinary Fourth Amendment restrictions by explaining that the Border
Patrol seeks to keep undocumented persons from moving into the rest of
the country, beyond the border zone. (38)

But, as the Court has also recognized, the border zone is not just
a place of transit: it is also a place where many people live and work,
and that many call home. (39) Justice Powell's majority opinion in
United States v. Brignoni-Ponce, upholding roving patrols near the
border, noted that major cities, including San Diego, El Paso, and the
cities of the Rio Grande Valley, lie within the border zone. (40) In
requiring reasonableness for stops in this area, Justice Powell
explained that the lack of such a requirement "would subject the
residents of these and other areas to potentially unlimited interference
with their use of the highways." (41) The opinion expressed the
view that while undocumented immigrants use roads in the region to
obtain "transportation ... to inland cities"--"seeking to
enter the country illegally"--highways in the area "carry ...
a large volume of legitimate traffic as well." (42) The next year,
in upholding brief seizures at fixed checkpoints, the Court explained
that the enforcement was part of a larger effort to "[i]nterdict
the flow of illegal entrants from Mexico" who "seek to travel
inland" for employment opportunities. (43)

As the conception of the border area in these opinions illustrates,
courts do not necessarily recognize and respond to the border zone as a
site where not just citizens and those with lawful immigration status
but also undocumented persons reside. (44) The dichotomy depicted in the
Fourth Amendment border-area cases--between citizens and lawful
permanent residents who live in the border zone, on the one hand, and
undocumented immigrants who pass through the area in order to enter into
the interior to obtain work--does not capture the reality of the space.
Estimates suggest that at least two hundred fifteen thousand of those
living in the border zone are unauthorized immigrants--over seventy-five
percent of whom have lived in the United States for at least five years,
and over fifty percent of whom have resided in the country for at least
ten years. (45) These are not individuals treating the area as a
transient space.

The many undocumented persons living in southern Texas are
therefore subject to an enforcement regime that this Note calls, as a
shorthand, "spatially selective immigration enforcement." This
enforcement is spatially selective in that it involves specific
questioning as to immigration status at the internal checkpoints, for
those who attempt to travel beyond the border zone. (46) Within the
border zone, an encounter with the Border Patrol is not certain and
requires reasonable suspicion. It is an attempt to travel beyond the
border zone that leads to exposure to spatially selective immigration
enforcement and its attendant potential for deportation. (47) The fact
that many undocumented immigrants remain in southern Texas for a decade
or longer indicates that, by staying within the border zone, individuals
are able to remain within the American community--but only within a
spatially restricted part of that community. (48)

Legal scholarship has highlighted the constitutional challenges
posed by "anomalous zones" more generally (49) and by the
border zone in particular. (50) The border-area scholarship has
primarily focused on the Fourth Amendment issues engendered by the
border and the related Supreme Court jurisprudence. (51) Scholars have
also probed race-based immigration policing in the border zone. (52)
Yet, the functional restriction on undocumented immigrants'
movement created by the checkpoints also implicates access to certain
substantive rights where exercise of those rights requires travel.
Potential ramifications of this anomalous zone for substantive due
process rights remain unexplored. Analyzing H.B. 2's effect on
unauthorized immigrants' abortion rights therefore provides a case
study that illuminates the unique constitutional conundrum posed by the
checkpoints: spatially selective immigration enforcement functionally
bars movement out of the area, preventing individuals from exercising
their rights.

B. Reproductive Rights and Spatiality: H.B. 2

In the context of H.B. 2, the spatially selective nature of
immigration enforcement intersects with a spatial dimension to
substantive due process--specifically, here, to abortion access. (53)
Much recent abortion litigation has centered on how the exercise of the
right depends on the ability to travel and spatial proximity to clinics.
In particular, the passage of state laws aimed at closing clinics has
generated litigation regarding the undue burden posed by increased
travel time. (54) The Seventh Circuit's most recent opinion
evaluating the effects of travel, in the context of a potential
preliminary injunction, included a map that charted out travel distance
in concentric circles from a town where a Planned Parenthood clinic
would close if the law were not enjoined. (55) The potential closure of
all abortion clinics in Mississippi implicated the spatiality of
abortion rights in a slightly different manner, raising the question of
whether a state must ensure access to a fundamental right within its
borders. (56) H.B. 2, against the backdrop of the checkpoints, creates a
third variant of these spatial questions: whether the closure of
clinics, requiring an encounter with law enforcement in traveling to
abortion clinics, violates the reproductive rights of the group of
people for whom that law enforcement is relevant. Travel time raises
questions in terms of spatial access as a sliding scale; H.B. 2 and the
checkpoints threaten to create, for a certain group, a de facto bar to
vindication of the right. The Mississippi regulations raise questions
about horizontal federalism; H.B. 2 and the border zone lead to
questions about rights vindication in the context of federal-state
allocations of power in anomalous zones.

The significance of the closure of abortion clinics in the border
zone--and deeper theoretical implications for understandings of
federalism and individual rights in the border zone--is also unexplored
in legal scholarship. Scholars have analyzed the significance of the
Texas abortion restrictions in thinking through legal disabilities
experienced by Latinas living in southern Texas (57) and in analyzing
the ways that courts fail to perceive rights barriers created by the
nature of rural areas. (58) Yet, while media reports have highlighted
the major hurdle that checkpoints could pose to undocumented women
seeking an abortion, scholarship has not separately explored this
potential burden. (59)

The doctrinal puzzle raised by H.B. 2 and the checkpoints--whether
there is in fact a violation of fundamental rights--has also been
largely missing from the litigation surrounding H.B. 2. In examining the
law's effects, the two challenges brought by reproductive-rights
advocates have primarily focused on the distance women must travel to
access abortion clinics. In the first case, Planned Parenthood v.
Abbott, the Fifth Circuit upheld H.B. 2's requirement that doctors
performing abortions have admitting privileges at a hospital within
thirty miles, against, inter alia, a facial Fourteenth Amendment
substantive due process challenge. (60) At trial, a reproductive health
clinic executive testified as to the barrier that women with
border-crossing cards--statuses for Mexican nationals that restrict
lawful presence to within a certain distance from the border--would face
in attempting to cross through internal checkpoints to reach the nearest
abortion clinic. (61) A Fifth Circuit motions panel noted this testimony
but determined in one sentence, "This obstacle is unrelated to the
hospital-admitting-privileges requirement." (62)

The second challenge to H.B. 2, Whole Woman's Health v.
Hellerstedt, has involved a facial and an as-applied challenge to the
provision requiring abortion facilities to meet the required standards
for ambulatory surgical centers and an as-applied challenge to the
statute's hospital admitting privileges requirement, for the
McAllen and El Paso clinics. (63) Discussion of H.B. 2's effects in
this litigation has also centered on travel distance: the Fifth
Circuit's ruling provided some relief as applied to the McAllen
clinic because of the undue burden created by travel time. (64) The
plaintiffs' trial brief and some testimony from a witness for the
plaintiffs at trial noted the barrier faced by women with
border-crossing cards. (65) The district-court opinion listed
"immigration status and inability to pass border checkpoints"
among eight "practical" obstacles beyond travel distance that,
together, indicated that the statute created substantial obstacles for
women. (66) Neither the motions panel nor the merits panel at the Fifth
Circuit treated "immigration status" distinctly or discussed
the checkpoints. An amicus brief at the Supreme Court argues that the
law creates an undue burden for Latinas in Texas in part because of
"[f]ear of immigration stops ... near the Mexican border" when
traveling, including fear "of passing immigration
checkpoints." (67)

The border checkpoints pose, though, an independent legal obstacle
for rights access in the border zone. Irrespective of travel-distance
burdens, the next three Parts argue, state legislation leading to clinic
closure in the border area gives rise to problems of rights access that
make that legislation constitutionally impermissible. Even if there were
no travel-distance problems and no other factors burdening abortion
access--even if there were clinics just on the other side of checkpoints
located close to the border--state regulations forcing clinics to
shutter, such that immigration enforcement is physically positioned
between an undocumented individual and the locus of rights vindication,
would be unconstitutional.

II. H.B. 2 AS UNDUE BURDEN

H.B. 2 provides a case study of the relationship between a spatial
administrative enforcement regime that functionally bars travel for
certain individuals and access to substantive due process rights
premised on a presupposition of the ability to travel. Parts II and III
analyze H.B. 2 as applied to the clinics in southern and western Texas
using two different doctrinal methodologies: in Part II, the undue
burden test first articulated in Justice O'Connor's plurality
opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey,
(68) and in Part III, the transsubstantive unconstitutional conditions
doctrine. Before reaching these two analytical frameworks, however, two
preliminary clarifications are necessary: one factual and the other
legal.

First, this analysis starts from the factual point of departure
that the means for unauthorized immigrants to legally cross border
checkpoints put forward by Customs and Border Protection, parole in
place, is not a realistic alternative that enables vindication of the
right to an abortion previability. Media report that Customs and Border
Protection has indicated that parole may be the appropriate avenue for
undocumented women in southern Texas seeking an abortion. (69) The
executive branch has discretion to parole any applicant for admission
into the United States "for urgent humanitarian reasons or
significant public benefit." (70) This discretionary parole is
available for those already within the territory of the United States
who entered without inspection. (71) It is less than clear that
unauthorized immigrants trying to obtain abortions who sought this
discretionary relief would necessarily receive it. (72) Even if they
ultimately did receive relief, though, applications for humanitarian
parole "are generally adjudicated within 90-120 business
days." (73) Unless one were to apply for parole within two weeks of
becoming pregnant, this time frame would extend beyond the twenty-week
limit on abortion in Texas created by H.B. 2.

Second, noncitizens without legal immigration status who are within
the United States have substantive due process rights--as courts
routinely recognize. (74) Though this point is well settled, because it
is essential to analyzing H.B. 2's constitutionality as applied to
border-zone clinics, it merits explication. Textually, substantive due
process's extension to all individuals within the United States
seems evident on the face of the Fourteenth Amendment's Due Process
Clause: "[N]or shall any state deprive any person of life, liberty,
or property, without due process of law." (75) As the Supreme Court
stated in 1976 in Mathews v. Diaz, "The Fifth Amendment, as well as
the Fourteenth Amendment, protects every one of these persons from
deprivation of life, liberty, or property without due process of law.
Even one whose presence in this country is unlawful, involuntary, or
transitory is entitled to that constitutional protection." (76)
Since Diaz, both the Supreme Court and lower federal courts have
evaluated whether state action violates unauthorized immigrants'
substantive due process rights without questioning whether the Due
Process Clause extends to these individuals. (77) As one example, in a
Ninth Circuit en banc decision, both the majority and the dissent
evaluated whether a state statute barring the grant of bail to
undocumented arrestees violated substantive due process as a matter of
course--without any question from either side as to whether the Due
Process Clause applied. (78) As is widely accepted, undocumented persons
have substantive due process rights--and such rights encompass the right
to decide whether to terminate a pregnancy. (79)

A. Casey's Undue Burden Analysis

Evaluating H.B. 2 as applied to the border-zone clinics through the
lens of abortion-specific doctrinal analysis highlights the way in which
the anomalous zone in border states, created by federal administrative
law and regulation, has implications for state legislation with
spatially disparate effects. Under the substantive due process doctrine
governing abortion, as delineated in Planned Parenthood of Southeastern
Pennsylvania v. Casey, (80) the backdrop of spatially selective federal
immigration enforcement makes H.B. 2 unconstitutional as applied to
these clinics. Should the McAllen and El Paso clinics close, this
Section argues, undocumented women would experience a "substantial
obstacle" to exercising the fundamental right to choose whether to
terminate a pregnancy. The clinic closures would have the effect of
deterring them from exercising that right, because they would have to
pass through the internal checkpoints to do so. Applying the logic of
Casey--particularly as articulated in its analysis of a state statutory
provision requiring spousal notification, which is closely analogous to
this context--shows that H.B. 2 violates the Fourteenth Amendment
substantive due process rights of undocumented immigrants and therefore
is unconstitutional as applied to the border-zone clinics.

Substantive due process analysis of H.B. 2 in the border area
requires the use of the Casey framework. (81) Under the "undue
burden" standard of review established in Casey, a regulation is a
constitutionally impermissible undue burden on a woman's right to
choose if it has either "the purpose or [the] effect of placing a
substantial obstacle in the path of a woman seeking an abortion of a
nonviable fetus." (82) While the litigation regarding H.B. 2 has
centered on the purpose analysis, in thinking about the intersection of
border checkpoints and state law, this aspect of the Casey previability
test is less salient: there is little to no evidence of any legislative
intent to restrict access specifically for undocumented women in the
border zone. (83) The key question is whether, as applied to the clinics
in the border zone, H.B. 2 is unconstitutional because it has the
"effect of placing a substantial obstacle in the path of'
women attempting to secure abortions, or whether the legislation is
permissible. And, to determine the answer to that question, it is
essential to consider the effect of clinic closures south of border
checkpoints on a particular group of women--unauthorized immigrants for
whom the clinic closures create a de facto bar to obtaining an abortion.
Casey's spousal-notification analysis illustrates the proper
approach for assessing the burden created by clinic closures in southern
Texas because of the close analogy between three elements of the undue
burden analysis: (1) the relevant classes, (2) the burdens imposed on
those classes, and (3) the lack of relevance of a particular legal
status (marital and immigration, respectively). (84)

In evaluating whether a statute or other state action has the
effect of creating a substantial obstacle, Casey explains, the relevant
inquiry is not the effect on all women but rather the effect on a subset
of women to whom the legal restriction matters. (85) In Casey, the Court
struck down the spousal-notification provision in the Pennsylvania law
at issue because it created a "substantial obstacle" to
obtaining an abortion for women who were at risk of spousal abuse. (86)
The statute required that a married woman provide her physician with a
signed statement, affirming that she had informed her spouse that she
would be obtaining an abortion, before the procedure could be performed.
(87) The woman could alternatively provide a signed statement averring
that she met one of the statutory exceptions to the requirement. (88)
However, those exceptions did not cover all conditions of spousal abuse,
nor did they cover situations in which a woman otherwise would not have
chosen to notify her spouse due to "the husband's illness,
concern about her own health, the imminent failure of the marriage, or
the husband's absolute opposition to the abortion." (89)

The State of Pennsylvania argued that, in determining whether the
statute had the effect of creating a substantial obstacle, the key
question was the percentage of women who sought an abortion who would be
affected by the law. (90) The Casey opinion, though, explained that this
approach was incorrect. (91) Rather, the scope of the inquiry properly
focused on "the group for whom the law is a restriction, not the
group for whom the law is irrelevant"--the key question was, out of
the group affected by the law, whether in "a large fraction of
cases" the statutory provision gave rise to a substantial obstacle.
(92) It was only once the group "of women upon whom the statute
operates" or, in other words, "those whose conduct [the
legislation] affects" was determined that a court could then
determine whether the imposed burden was undue. (93) For the
spousal-notification requirement, the scope of the undue burden inquiry
was not all women in Pennsylvania or even all married women seeking
abortions. (94) For most married women, the Court explained, the statute
would not change their behavior, because "[i]n well-functioning
marriages, spouses discuss important intimate decisions." (95)
Consequently, in ascertaining whether the spousal-notification
requirement posed an undue burden, the inquiry as to potential burden
was limited to "married women seeking abortions who do not wish to
notify their husbands of their intentions and who do not qualify for one
of the exceptions to the notice requirement." (96)

Similarly, in determining whether the statutory provisions
compelling the closure of the McAllen and El Paso clinics are
constitutionally permissible, one does not evaluate the effect of the
closures on all women in Texas, all women in those cities, or all women
in the border zone. Rather, the scope of the inquiry focuses on
"the group for whom the law is a restriction, not the group for
whom the law is irrelevant." (97) Following Casey, federal courts
have applied Casey's limited-inquiry approach in the context of
clinic closures. (98) In evaluating the appropriateness of a preliminary
injunction of admitting privileges requirements in Wisconsin that would
lead to clinic closures, for example, a district court explained that
the scope of the relevant inquiry was "women seeking abortions who
are impacted by the closure of [two clinics], and the reduction of
capacity of [a third] clinic. The question is what percentage of those
women will be substantially impacted." (99) Similarly, in
evaluating the closure of the clinics in the border zone, the
appropriate focus is the group of women seeking abortions "for whom
the law is a restriction"--the group that experiences some sort of
burden due to the law, whether due to travel time or the need to pass
through border checkpoints. (100) Once the group that experiences some
sort of burden is ascertained, the effects analysis asks whether, for a
"significant number" or "large fraction" of the
group who experiences some sort of effect, the burden is undue. (101)
The Casey Court determined that Pennsylvania's spousal-notification
requirement was invalid because, "in a large fraction of the cases
in which [the statutory provision was] relevant, it ... operate[d] as a
substantial obstacle." (102) This "large fraction"
language has been the subject of attempts at judicial line drawing since
Casey. (103) Casey itself, though, did not give any precise ratio or
number-there was no calculation in the opinion as to the percentage or
absolute number of women who experienced an undue burden from the
spousal-notification requirement. (104) As noted above, Casey quoted the
district court's findings as to a number of circumstances in which
the spousal-notification requirement might change women's
behavior--most significantly, in spousal-abuse situations, but also in
instances where the marriage was disintegrating, the spouse was ill or
opposed to abortion, or the woman was concerned with her own health.
(105) In determining that spousal abuse meant that, in a "large
fraction" of cases, the law gave rise to an undue burden, Casey did
not estimate the numerical ratio of spousal abuse versus the other
situations it delineated. (106) Rather, it reasoned that women who were
subject to potential domestic abuse were "likely to be deterred
from procuring an abortion," that there were many such women in the
United States ("millions"), and that, consequently, in a
"large fraction" of the relevant cases, where behavior might
change, the law created a substantial obstacle to obtaining an abortion.
(107)

The nature of this effects analysis--looking to some subset of the
burdened population for whom the burden may be undue--is what makes the
interior checkpoints so salient to analysis of the potential clinic
closures in the border zone. For undocumented women, closure of the
McAllen and El Paso clinics--of the clinics south and west of
checkpoints--means that they are "likely to be deterred from
procuring an abortion," as those at risk of spousal abuse were
likely to be deterred under the Pennsylvania provision at issue in
Casey. Crossing border checkpoints to obtain an abortion risks detention
and deportation, including the possibility of permanent separation from
family members in the United States. (108) As was apparently true for
those subject to spousal abuse in Casey, there appears to be no readily
available empirical evidence on the precise effect of this choice on
women's actions or the number or percentage of undocumented women
seeking an abortion in the border zone who will be deterred from doing
so. (109) As in the case of those at risk of spousal abuse, unauthorized
immigrants are not easily identifiable and likely reluctant to come
forward for such research. Nevertheless, the high stakes for
undocumented women in crossing checkpoints, coupled with anecdotal
evidence that the checkpoints do function as a deterrent, (110) indicate
that--like those deterred by spousal abuse in Casey-undocumented women
who would otherwise obtain an abortion are, if the clinics close, likely
to be deterred from doing so.

For undocumented immigrants seeking abortions in light of possible
clinic closures and the background reality of internal immigration
checkpoints, the analogy to the spousal-notification requirement in
Casey and its effect on potential spousal abuse victims is particularly
apt. Just as, in Casey, the background reality of a condition in certain
women's lives meant that a new statutory burden made such women
"likely to be deterred from procuring an abortion," (111) the
background reality of the border checkpoints means that a significant
number of the women living in southern Texas without legal status will
probably be deterred from obtaining an abortion. Casey noted that those
in abusive situations "may have very good reasons for not wishing
to inform their husbands," including possible abuse of themselves
or their children and their spouses' ability to leverage potential
disparities in economic power. Similarly, the consequences of removal
from the United States are potentially enormous; undocumented women may
also "have very good reasons" for avoiding contact with
internal border checkpoints.

The parallel between the two statuses is especially appropriate in
that, just as married women "do not lose their constitutionally
protected liberty" (112) because of their legal status, neither do
undocumented women. Governmental action on behalf of the underlying
legal regime related to a woman's status--whether that be marital
status and regulation of marriage or immigration status and regulation
of immigration--may not, Casey indicates, be a means of depriving women
of their fundamental rights, where they maintain those rights regardless
of that legal status. While this point is certainly not essential to the
large-fraction analysis, it suggests the particular aptness of the
analogy to the spousal-notification requirement.

If the analogy to Casey is relatively straightforward, though, what
should we make of the Fifth Circuit's brief analysis of the issue,
which quickly discarded the "obstacle" of border checkpoints
as "unrelated to the hospital-admitting-privileges
requirement"? (113) This determination reflects-in addition to a
lack of record information on the point (114)--an erroneous
understanding of Casey, relying too much on language in the
selective-funding case Harris v. McRae (115) without considering
Casey's later analysis. (116) It fails to recognize that
Harris's language that the government "may not place obstacles
in the path of a woman's exercise of her freedom of choice, [but]
it need not remove those not of its own creation" (117) is at odds
with Casey, unless read in the broader context of the selective-funding
cases. Abusive spouses are not the creation of the government, yet Casey
found that where their actions combined with Pennsylvania's
spousal-notification requirement, the burden was undue. (118) Harris, in
determining that the availability of federal Medicaid funds for
pregnancy-related expenses but not for abortion was constitutionally
permissible, decided that such funds' availability "leaves an
indigent woman with at least the same range of choice" as to
whether to obtain an abortion; (119) the spousal-notification
requirement in Casey and the closure of clinics south of border
checkpoints, by contrast, restrict choice by removing access, such that
the option of abortion is functionally unavailable.

H.B. 2 creates a substantial obstacle for a "significant
number" or "large fraction" of the women for whom the law
is relevant: the undocumented immigrants for whom the clinic closures
impose a virtually per se bar to obtaining an abortion. The numbers here
cannot be obtained with precision, but Casey indicates that they need
not be. The closure of clinics in the border zone creates obstacles for
those seeking an abortion, due to increased travel distance. (120) That
group of individuals--those burdened by distance--is analogous to the
group of women in Casey who might have wished not to notify their spouse
for reasons unrelated to domestic violence. Casey did not attempt to
calculate this group's precise number, or to compare it
mathematically to the number for whom the provision was a de facto per
se bar due to spousal abuse. Consequently, under Casey, it is not
necessary to determine the exact number of undocumented women in
Texas's border zone. Rather, the point is that undocumented
immigrants in southern Texas who are burdened by the clinic
closures--whether that group is framed as a "large fraction"
or a "significant number" of those burdened by the
closures--experience the burden on their right to abortion as a virtual
bar.

There are likely more than eighty thousand undocumented women of
reproductive age in Texas's border zone. Just as the Casey court
was able to infer from the high number of women who are subject to
spousal abuse in the United States that a "large fraction" of
those who would not otherwise inform their spouses belonged to this
group, in the H.B. 2 context we can infer that a "large
fraction" of those affected by the clinic closures in the border
zone are undocumented immigrants who now may be functionally unable to
obtain an abortion.

B. Immigration Enforcement as Obstacle

A potential objection to this doctrinal understanding of the burden
posed by immigration checkpoints is the nature of the obstacle: one
might say that immigration enforcement is no obstacle to rights
vindication in this context at all, due to the availability of abortion
in immigration detention. Federal immigration-detention standards
provide that "[a] pregnant detainee in custody shall have access to
pregnancy services including ... abortion services" and that every
place of detention "shall ... provide its female detainees with
access to" abortion. (121) Either undocumented women will not be
detained at a checkpoint and will continue driving until they reach an
abortion clinic, or they will be detained and may avail themselves of
access to abortion care while detained. Consequently, the objection
might run, undocumented women in the Rio Grande Valley and El Paso face
unfortunate circumstances, but there is no absolute bar to abortion
access: either outcome could end in exercise of the right. How could
there be any rights pressure, then--let alone an undue burden?
Evaluating the nature of immigration enforcement as an obstacle
implicates the functional nature of undue burden analysis, which takes
into account not whether there is some possible avenue to rights
vindication but rather the probability of deterrence due to cost-benefit
analysis associated with the barrier to vindication of the right.

The key question in evaluating whether state action gives rise to
an undue burden under Casey's effects prong is whether the action
"impose[s] a substantial obstacle," such that individuals are
"likely to be deterred from procuring an abortion." (122)
Casey explained that because those subject to potential spousal abuse
were likely to weigh the cost-benefit analysis and not notify their
spouses, out of "fear for their safety and the safety of their
children," the requirement meant they were "likely to be
deterred from procuring an abortion as surely as if the Commonwealth had
outlawed abortion in all cases." (123) Formally, women in this
situation could tell their spouses, potentially incur abuse, and obtain
abortions; functionally, the Court recognized, the potential cost of
doing so was so great that these women were "likely to be
deterred"--likely to choose not to vindicate the abortion right.
(124)

Similarly, the rights burden created in this situation by H.B. 2 is
not because there is no possible way for an unauthorized immigrant
living in southern Texas to vindicate her right to obtain an abortion.
Instead, the rights burden exists because, due to both the perceived
very high risk of detention and deportation in passing through
checkpoints (125) and the magnitude of the repercussions of detention
and deportation, undocumented women are "likely to be
deterred" from obtaining an abortion at all. Removal from the
United States can be personally catastrophic: an individual is
separated, perhaps permanently, (126) from her home, her family, her
community, and her work-in short, from the life that she has created for
herself. (127) Those in families of mixed citizenship and immigration
statuses face an especially wrenching choice: to uproot everyone,
potentially moving to a country where some or all family members do not
have ties or even speak the predominant language, or to leave some
family members behind for an indefinite period of time. (128) The
Supreme Court has described deportation as "the equivalent of
banishment or exile." (129) It has recognized that deportation may
cause the "loss of both property and life; or of all that makes
life worth living." (130) When a woman may obtain an abortion only
by placing herself at risk of losing "all that makes life worth
living," it is reasonable to surmise that many women who would
otherwise choose to terminate that pregnancy will not do so.

Moreover, even beyond the enormous harm of deportation, the
probability of losing one's liberty (131) by being placed in
immigration detention is likely to function as a deterrent in traveling
through the checkpoints for abortion purposes. (132) Even for those
without legal status who are not ultimately deported, because they are
granted a form of affirmative relief--asylum or withholding of
removal-the process for receiving affirmative relief may take years, and
if the immigration judge determines that they are a flight risk or a
danger to the community, they may spend those years in detention. (133)
Federal courts have recognized that, for sentencing purposes, time spent
in immigration detention either may be equivalent to time spent in
prison (134) or may qualify a convicted individual for a downward
departure in sentencing. (135)

When weighing, in combination, the threat of removal and the hazard
of detention in passing through internal checkpoints, a
"significant number" of women without legal status are
"likely to be deterred." (136) Even if potential detention is
not an absolute bar to abortion, for many women the utility analysis of
the magnitude and probability of harm from being detained and likely
deported will itself function as a bar. Under the current doctrinal
analysis for violations of the substantive due process right to choose
whether to terminate a pregnancy, undocumented women--a "relevant
fraction" of the population affected by H.B. 2's admitting
privileges and ambulatory surgical center requirements--experience an
undue burden. This specific doctrinal analysis demonstrates how, taking
into account the backdrop of federal checkpoints, state legislation may
burden rights in the border zone.

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